YES!  If you are settling a case on behalf of a minor in Illinois you must get court approval for any settlement, regardless the size of the claim and settlement. Many small claims involving children can be settled without litigation and each side is usually more than willing to keep the claim out of court. But no matter how strongly you desire to stay out of court and no matter what the plaintiff’s attorney tells you, do not agree to settle a case involving a minor without court approval.

According to 755 ILCS 5/19-8, which is part of the Probate Act, a parent has no legal right to settle a minor’s cause of action by virtue of the parent relationship alone. Illinois courts have interpreted this section of the Probate Act to require court approval for settlements entered into on behalf of minors in order for them to be binding against the minor at the age of maturity. See, Villalobos v. Cicero School Dist., 841 N.E.2d 87 (1st Dist. 2005).

In Villalobos, the minor plaintiff was injured in a car accident. She subsequently left the country and her parents entered into releases for themselves and their daughter. Both the plaintiff and her parents received $1,500 each but the releases were not approved by the court. The appellate court relied on the Probate Act, 755 ILCS 5/19-8, and held that Illinois courts do not allow a parent and/or guardian to enter into a settlement of a minor’s claim without court approval. 841 N.E.2d at 93. The Villalobos court also pointed to case law holding that releases executed on the minor’s behalf by the parent are “unenforceable.” 841 N.E.2d at 95.

Similarly, in Smith v. Smith, the appellate court noted that “any settlement of a minor’s claim is unenforceable unless or until there has been approval by the probate court.” 832 N.E.2d 960, 963 (4th Dist. 2005). In Smith, the plaintiff was injured in a single-car accident. The plaintiff’s mother was driving. After the accident, the plaintiff’s mother entered into a release for $1,000 on behalf of the daughter, waiving future claims against the mother’s insurer. 358 Ill.App.3d at 792. The plaintiff’s father, individually and as next friend of the plaintiff, later sued the mother for negligence. The mother asserted the release as an affirmative defense. Additionally, the mother attempted to file an affidavit complying with section 5/25-2 of the Probate Act, which determines what is appropriate when the personal estate of the ward is less than $5,000. The court rejected the argument, stating the section 5/25-2 “does not obviate the need for the court to approve of a minor’s settlement.” 358 Ill.App.3d 793. In Smith, the appellate court found it was necessary for the court approving a settlement to make a judicial determination that the settlement is in the best interest of the minor.

Fortunately, in most situations Illinois courts will uphold settlements and releases that were approved by a probate court. In Hudson v. Theis, a seven year old plaintiff was injured and the plaintiff’s father settled with the defendant for $1,262.75. 182 N.E.2d 760 (3rd Dist. 1962).   Seven months after he turned twenty-one years old, the plaintiff filed suit against the defendant. The defendant responded with the affirmative defense that a valid, legally binding settlement had been entered into and a release had been executed by the plaintiff’s father. The appellate found the settlement was valid. In cases where these types of settlements have been approved by the court, they are asserted as affirmative defenses to the plaintiff’s cause of action.

However, even if a probate court approves the settlement, be aware that the plaintiff may be able to bring a claim if he can prove, by clear and convincing evidence, there was a mutual mistake of fact as to the nature of the damages sustained by the plaintiff. See, Scherer v. Ravenswood Hosp., 316 N.E.2d 98 (1st Dist. 1974)(remanding a case for rehearing on whether there was a mutual mistake of fact).

Local Rules To Be Aware Of

Lastly, it should be noted that in addition to the case law discussed above, each local circuit court has adopted its own rules outlining the process to obtain approval for such settlements:

• Cook County – Cook County Circuit Rule 12.15
• Will County – 12th Judicial Circuit Rule 5.03
• Kane County – 16th Judicial Circuit Rule 10.01
• DuPage County – 18th Judicial Circuit Rule 10.01
• Lake County – 19th Judicial Circuit Rule 14.24

My recommendation is to make it clear to Plaintiff’s counsel from the start of any pre-suit settlement discussions involving a minor that an absolute requirement of settlement is court approval.